Amicus Curiae Brief — National Rifle Association of America, Petitioner v. Maria T. Vullo

No. 22-842

_______________________________________________

In the Supreme Court of the United States

_____________

NATIONAL RIFLE ASSOCIATION OF AMERICA,

Petitioner,

v.

MARIA T. VULLO,

Respondent.

_____________

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

____________

BRIEF FOR THE STATE OF MONTANA AND 17

OTHER STATES AS AMICI CURIAE IN

SUPPORT OF PETITIONER AND REVERSAL

_____________

AUSTIN KNUDSEN

Attorney General

PETER M. TORSTENSEN, JR.

Assistant Solicitor General

Counsel of Record

CHRISTIAN B. CORRIGAN

Solicitor General

MONTANA DEPARTMENT

OF JUSTICE

215 N. Sanders Street

Helena, MT 59601

peter.torstensen@mt.gov

(406) 444-2026

Counsel for Amicus Curiae State of Montana

(Additional Counsel listed on signature page)

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... iii

INTEREST OF AMICI CURIAE ................................ 1

INTRODUCTION AND SUMMARY OF ARGUMENT........................................................................... 2

ARGUMENT ................................................................ 4

I.

The Second and Tenth Circuits have abandoned Bantam Book’s contextual approach to

analyzing government coercion, splitting

with at least six federal circuits ......................... 4

A. Bantam Books forbids government actors

from using implicit threats and other coercive practices to stifle protected speech

....................................................................... 5

B. Since Bantam Books, lower courts have

evaluated informal censorship claims using a context-specific analysis ...................... 6

C. The Second and Tenth Circuits departed

from this consensus approach, opting for

a formalist focus on explicit threats .......... 12

II.

Vullo’s and VDARE’s expansion of the government speech doctrine risks eroding First

Amendment safeguards for political speech .... 19

III. Vullo and VDARE pave the way for government suppression of disfavored speech ............ 22

ii

CONCLUSION .......................................................... 24

ADDITIONAL COUNSEL ........................................ 26

iii

TABLE OF AUTHORITIES

CASES

Am. Fam. Ass’n, Inc. v. City & Cnty. of S.F.,

277 F.3d 1114 (9th Cir. 2002) ................................ 10

Backpage.com, LLC v. Dart,

807 F.3d 229 (7th Cir. 2015) ........... 4, 7-8, 11, 23-24

Bantam Books, Inc. v. Sullivan,

372 U.S. 58 (1963) ............ 1-2, 4-6, 11-12, 14, 16, 20

Blankenship v. Manchin,

471 F.3d 523 (4th Cir. 2006) .................................... 8

Blum v. Yaretsky,

457 U.S. 991 (1982) ...........................................13-14

Clark v. Cmty. for Creative Non-Violence,

468 U.S. 288 (1984) ................................................ 21

Garcetti v. Ceballos,

547 U.S. 410 (2006) ................................................ 21

Garcia v. City of Trenton,

348 F.3d 726 (8th Cir. 2003) .................................... 9

Garrison v. Louisiana,

379 U.S. 64 (1964) .................................................... 1

Hammerhead Enters., Inc. v. Brezenoff,

707 F.2d 33 (2d Cir. 1983) ..................................... 17

iv

Iancu v. Brunetti,

139 S. Ct. 2294 (2019) .............................................. 1

Johanns v. Livestock Mktg. Ass’n,

544 U.S. 550 (2005) ................................................ 21

Matal v. Tam,

137 S. Ct. 1744 (2017) ........................................ 3, 20

Nat’l Rifle Ass’n of Am. v. Vullo,

49 F.4th 700 (2d Cir. 2022) ............... 5, 16-18, 20, 22

NLRB v. Gissel Packing, Co.,

395 U.S. 575 (1969) ...................................... 2, 18, 19

Okwedy v. Molinari,

333 F.3d 339 (2d Cir. 2003) ..................................... 7

Palko v. Connecticut,

302 U.S. 319 (1937) .................................................. 1

Penthouse Int’l, Ltd. v. Meese,

939 F.2d 1011 (D.C. Cir. 1991) .........................10-11

Pleasant Grove City v. Summum,

555 U.S. 460 (2009) .......................................... 20, 23

R.C. Maxwell Co. v. Borough of New Hope,

735 F.3d 85 (3d Cir. 1984) ...................... 9-10, 18-19

Rust v. Sullivan,

500 U.S. 173 (1991) ................................................ 20

v

Shurtleff v. City of Boston,

142 S. Ct. 1583 (2022) ............................... 1, 3, 20-23

Thornhill v. Alabama,

310 U.S. 88 (1940) .............................................22-23

VDARE Found. v. City of Colo. Springs,

11 F.4th 1151 (10th Cir. 2021) ............. 12-16, 20-23

Walker v. Texas Div., Sons of Confederate Veterans,

Inc., 576 U.S. 200 (2015)........................................ 21

OTHER AUTHORITIES

Br. of Amicus Curiae ACLU in Support of Pl.’s Opp.

to Def.’s Mot. to Dismiss, Nat’l Rifle Ass’n v.

Cuomo, No. 18-cv-0566 (N.D.N.Y. Aug. 24, 2018)

......................................................................... 3-4, 23

Will Duffield, Jawboning Against Speech, CATO

POL’Y ANALYSIS, Sept. 12, 2022 ........................23-24

David B. Rivkin Jr. & Andrew M. Grossman, The

NRA vs. the Censorship ‘Mob’, THE WALL ST. J.

(Dec. 27, 2022) ........................................................ 18

INTEREST OF AMICI CURIAE 1

Freedom of speech is “the matrix, the indispensable condition, of nearly every other form of freedom.”

Palko v. Connecticut, 302 U.S. 319, 327 (1937); see also

Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964)

(“[S]peech concerning public affairs is more than selfexpression; it is the essence of self-government.”). But

that freedom is “under attack.” Iancu v. Brunetti,

139 S. Ct. 2294, 2302-03 (2019) (Alito, J., concurring).

And when that ‘attack’ comes in the form of government expression that abridges or regulates private

speech, it is vital that federal courts police the lines

between genuine government speech and “surreptitious[] regulation of private speech.” Shurtleff v. City

of Boston, 142 S. Ct. 1583, 1595-96 (2022) (Alito, J.,

concurring in the judgment) (citation and quotation

marks omitted). So, to ensure that a vibrant and robust right of free private expression remains “ringed

about with adequate bulwarks,” see Bantam Books,

Inc. v. Sullivan, 372 U.S. 58, 66 (1963), the States of

Montana, Alabama, Arkansas, Georgia, Iowa, Kansas,

Kentucky, Louisiana, Missouri, New Hampshire,

North Dakota, Ohio, Oklahoma, South Carolina,

South Dakota, Utah, West Virginia, and Wyoming, file

this amicus brief in support of petitioner.

1 As required by Rule 37.2, counsel for amici notified counsel of

record for all parties of its intent to file this brief more than ten

days before its due date.

2

INTRODUCTION AND

SUMMARY OF ARGUMENT

This case concerns troubling allegations of governmental abuse of power. As plausibly alleged, Maria

Vullo, the head of New York’s Department of Financial

Services (“DFS”), a state agency tasked with sweeping

regulatory authority over financial institutions, leveraged her official authority to stifle the NRA’s

constitutionally protected political speech. But even

though Vullo’s politically motivated campaign involved press releases, official regulatory guidance, and

ongoing investigations that targeted financial institutions doing business with the NRA, she steered clear

of any explicit threats in these communications, at

least to the “disinterested ear.” NLRB v. Gissel Packing, Co., 395 U.S. 575, 619 (1969). But the financial

institutions picked up the subtext: drop the NRA or

else. See Pet.11, 24-27. Even so, after Bantam Books,

these “informal sanctions” cannot sidestep First

Amendment scrutiny. See 372 U.S. at 66-67. Yet, the

decision below departed from that clear instruction

and gave state officials license to target and crackdown on their political opponents’ protected speech.

Bantam Books rejected a myopic focus on whether

officials expressly threatened adverse consequences,

and since then federal courts have largely followed

suit. Courts thus consider all relevant context, including the official’s actual (or apparent) regulatory

authority, the specific language in the official’s statements, and whether the targeted individuals or

entities perceived the statements as threats. Not only

3

did the Second Circuit depart from this Court’s precedent in Bantam Books, but it also departed from its

own prior precedent and the precedent of six federal

circuits. That split is direct and—without this Court’s

intervention—irreconcilable.

Despite this Court’s clear warning to “exercise

great caution before extending [the] governmentspeech precedents,” the Second Circuit charged ahead

and demonstrated that doctrine’s “susceptib[ility] to

dangerous misuse.” Matal v. Tam, 137 S. Ct. 1744,

1758 (2017). Rather than safeguarding private expression against government regulation, the decision

below subtly shifts the emphasis to safeguarding government

expression—opening

the

door

for

governments to use the “government-speech doctrine … as a cover for censorship.” Shurtleff, 142 S.

Ct. at 1595 (Alito, J., concurring in the judgment).

The Second Circuit’s decision gives government officials license to financially cripple their political

opponents, or otherwise stifle their protected speech—

whether those rivals advocate for school choice, abortion rights, religious liberty, environmental

protections, or any other politically salient issue. As

the ACLU argues, the decision gives “[p]ublic officials … a readymade playbook for abusing their

regulatory power to harm disfavored advocacy groups

4

without triggering judicial scrutiny.” 2

should grant the petition and reverse.

This Court

ARGUMENT

I. The Second and Tenth Circuits have abandoned Bantam Book’s contextual approach to

analyzing government coercion, splitting

with at least six federal circuits.

Sixty years ago, this Court held that a state commission, without formal regulatory authority, violated

the First Amendment when it sought to “suppress[] … publications” through “informal sanctions,”

such as the “threat of invoking legal sanctions and

other means of coercion, persuasion, and intimidation.

Bantam Books, 372 U.S. at 66-67. Since then, federal

courts look for informal censorship regimes by distinguishing between “attempts to convince” and

“attempts to coerce” and weighing the defendants’ regulatory authority over the targeted entity, the

language used in the alleged threat, and whether the

targeted entity reasonably perceived the statement as

a threat. See Pet.13-14 (quoting Backpage.com, LLC

v. Dart, 807 F.3d 229, 230-32 (7th Cir. 2015)); see also

infra Sect.I.B.

But the Second Circuit’s decision below flips this

contextual approach on its head, focusing on whether

2 Br. of Amicus Curiae ACLU in Support of Pl.’s Opp. to Def.’s

Mot. to Dismiss, Nat’l Rifle Ass’n v. Cuomo, No. 18-cv-0566, ECF

No. 49-1 (N.D.N.Y. Aug. 24, 2018) (“ACLU Br.”), at 4.

5

the government official’s statements explicitly threatened adverse regulatory consequences. See Nat’l Rifle

Ass’n of Am. v. Vullo, 49 F.4th 700, 716-17 (2d Cir.

2022) (finding that Vullo’s remarks weren’t threatening because they “were written in an evenhanded, nonthreatening tone,” “employed words intended to persuade rather than intimidate,” and “did not refer to

any pending investigations or possible regulatory action”). That myopic focus on explicit threats conflicts

with this Court’s decision in Bantam Books and splits

from the Second Circuit’s prior precedent and with the

precedent of the Third, Fourth, Seventh, Eighth,

Ninth, and D.C. Circuits.

A. Bantam Books forbids government actors

from using implicit threats and other coercive practices to stifle protected speech.

In Bantam Books, four New York publishers and a

wholesale distributor raised a First Amendment challenge to a state commission’s practice of investigating

and deeming certain publications “objectionable for

sale.” 372 U.S. at 61. As part of its practice, the commission issued notices to distributors on official

letterhead, which: (i) indicated that it deemed a certain publication objectionable; (ii) thanked the

distributor in advance for “cooperat[ing];” (iii) noted

its obligation to refer “purveyors of obscenity” for prosecution; and (iv) advised the distributor that a list of

objectionable publications had been circulated to local

police departments. Id. at 62-63 & n.5. Local police

officers often visited shortly after distributors received

the commission’s notices to see what actions were

6

taken. Id. at 63. So, the distributor relented to avoid

prosecution, ceasing further circulation of the listed

publications and refusing to fill new orders. Id.

Even though the commission had no authority to

“regulate or suppress obscenity” and it never expressly

threatened to institute criminal proceedings against

the distributor, this Court held that the commission’s

practices violated the First Amendment. See id. at 6568. This Court “look[ed] through forms to the substance” and concluded that the commission’s use of

“informal sanctions”—i.e., “threat[s],” “coercion, persuasion, and intimidation”—violated the First

Amendment. Id. at 66-67. Nor did the lack of explicit

threats render the distributor’s compliance with the

commission’s notices voluntary. Rather, observing

that “[p]eople do not lightly disregard public officers’

thinly-veiled threats to institute criminal proceedings,” the Court explained that, in context, “[i]t would

be naïve to credit the State’s assertion that these

blacklists are in the nature of mere legal advice.” See

id. at 68-69.

B. Since Bantam Books, lower courts have

evaluated informal censorship claims using a context-specific analysis.

In the six decades following Bantam Books, federal

courts evaluating whether government officials have

employed coercive means to stifle protected expression

“look through forms to the substance,” and focus on

whether, in context, the official’s words and conduct

can be reasonably interpreted to threaten adverse consequences. See id. at 67.

7

1. The lower federal courts have largely heeded

Bantam Books’ instruction. For example, in Okwedy

v. Molinari, a public official sent a letter to a private

entity, asking it to remove a controversial message

from one of its billboards. 333 F.3d 339, 341-42 (2d

Cir. 2003). But in that letter, the official invoked his

formal title and hinted that the entity “derive[d] substantial economic benefits from [other billboards]” in

the area. Id. The Second Circuit found that the official’s invocation of his title, as well as his reference to

other economically-beneficial assets owned by the entity, reasonably suggested that the official “intended

to use his official power to retaliate against it if it did

not respond positively to his entreaties.” Id. at 344. It

didn’t matter that the official “lacked direct regulatory

control over the billboards.” Id. Instead, the question

was whether the defendant “threaten[ed] to employ

coercive state power to stifle protected speech,”

whether through “direct regulatory or decisionmaking

authority” or “in some less-direct form.” Id.

Likewise, in Backpage.com, the Sheriff sent a letter

to Visa and Mastercard demanding that they cease

processing payments for ads on Backpage because

some of those “ads might be for illegal sex-related

products or services.” 807 F.3d at 230. That letter—

sent on official letterhead—included an ominous reference to the federal money laundering statute,

suggesting that the credit card companies could be

subject to prosecution if they didn’t comply. Id. at 231,

234. Despite the Sheriff’s lack of formal authority to

take action against the credit card companies, the Seventh Circuit found that, especially given the Sheriff’s

8

broader campaign against Backpage, his misuse of official authority to “attempt to intimidate” and

“threaten[]” those companies violated the First

Amendment. See id. at 236-37. Because the Sheriff’s

letter requested a “cease and desist,” invoked the companies’ legal obligations to cooperate with law

enforcement, and required ongoing contact with the

companies, the court found that the Sheriff’s actions

reasonably implied that the companies would face

some government sanction if they didn’t comply. See

id. at 236. And large companies like Visa and Mastercard face significant incentives to cave to such threats,

especially given the limited value of individual clients

and the potential for significant liability or negative

press if they refuse to comply. See id.

Similarly, in Blankenship v. Manchin, a coal executive publicly opposed a state constitutional

amendment supported by the state governor.

471 F.3d 523, 525-26 (4th Cir. 2006). The governor responded, in a newspaper article, that “tougher

scrutiny of [the executive’s] business affairs” was “justified.” Id. A few days after the measure failed, the

threat of added regulatory scrutiny materialized. Id.

at 526-27. In considering whether the governor’s remarks were “threatening, coercive, or intimidating,”

the Fourth Circuit examined the “full context” of his

remarks, including the increased regulatory scrutiny.

Id. at 528-30 (citation omitted). Given that context,

the court found that the governor’s remarks could reasonably be seen “as a threat of increased regulatory

scrutiny.” See id. at 529-30.

9

Relatedly, in Garcia v. City of Trenton, a city mayor

threatened to enforce a parking ordinance against a

local business owner because of her repeated complaints about the city’s failure to enforce another local

ordinance. 348 F.3d 726, 727-28 (8th Cir. 2003). Before her complaints, the parking restriction was rarely

enforced, but after, she received four parking citations

in two months. Id. at 728. The Court found that the

evidence was sufficient to send the First Amendment

claim to the jury because the city had “engaged the punitive machinery of government in order to punish

[the plaintiff] for her speaking out.” Id. at 729.

2. Even when federal courts reject informal censorship claims, they evaluate government officials’

statements in context. For example, in R.C. Maxwell

Co. v. Borough of New Hope, a city council urged the

owner of a billboard site to cancel its existing leases

and remove the billboards. 735 F.3d 85, 86-87 & n.2

(3d Cir. 1984). The lessee sued, claiming that the city

council’s “exerti[on of] its sovereign power, coerced

[the owner] to order the billboards removed,” in violation of its First Amendment rights. Id. at 87. But the

Third Circuit held that the city council’s statements

and conduct did “not rise to the level of state-coerced

action.” See id. at 88-89. Critical to its analysis was

the city council’s lack of regulatory authority and the

absence of conduct suggesting adverse consequences

would follow noncompliance. See id. Not only that,

but the recipient of the alleged threats denied feeling

“coerced or intimated,” and claimed instead that his

decision was made to “secure the good graces of the

[city council].” Id. (explaining that actions taken “to

10

create a receptive climate for future [business] plans

does not rise to the level of state-coerced action”). In

sum, the city council’s letters, “devoid as they were of

any enforceable threats, amounted to nothing more

than a collective expression of the local community’s

distaste for the billboards.” Id. at 89.

Similarly, in Am. Fam. Ass’n, Inc. v. City & Cnty.

of S.F., the city adopted a resolution criticizing plaintiff’s advertising campaign and urging local television

stations not to air those messages. 277 F.3d 1114,

1119-20 (9th Cir. 2002). But apart from criticizing

plaintiff’s speech and urging television stations not to

air it, “there was no sanction or threat of sanction” if

the television stations “[ignored the] request and aired

the advertisements.” Id. at 1125. Nor was there any

evidence that local television stations perceived the

resolution as a threat. See id. And because “public

officials may criticize practices that they would have

no constitutional ability to regulate, so long as there is

no actual or threatened imposition of government

power or sanction,” the Ninth Circuit rejected plaintiff’s First Amendment claim. Id. at 1124-25.

And in Penthouse Int’l, Ltd. v. Meese, a commission

tasked with studying the societal effects of pornography—lacking any direct legal or regulatory

authority—sent a letter giving companies alleged to be

involved in the distribution of pornography the opportunity to respond to those allegations before the

commission drafted the final report and identified distributors. 939 F.2d 1011, 1012-13 (D.C. Cir. 1991).

Recognizing that the commission may have come

11

“close to implying more authority than it had or explicitly claimed,” the D.C. Circuit considered the

commission’s statements and conduct in context and

found no “threat[] to use the coercive power of the state

against the recipients of the letter.” Id. at 1015. The

Court also rejected the argument that the letter was

an implicit threat to blacklist distributors because, at

most, the commission threatened potential embarrassment. See id. at 1016 (expressing doubt that

without a threatened sanction “the government’s criticism or effort to embarrass the distributor threatens

anyone’s First Amendment rights.”).

3. When federal courts evaluate claims of informal

censorship by government officials, this much is clear:

neither direct regulatory authority nor explicit threats

are necessary to state a claim. To be sure, the presence of either (or both) makes the inquiry easier. After

all, the commission in Bantam Books and the Sheriff

in Backpage.com lacked direct regulatory authority

over the targeted entities, but the courts still found

that both exercised coercive state power to stifle protected speech. See Bantam Books, 372 U.S. at 68-69;

Backpage.com, 807 F.3d at 233, 236. If the absence of

direct regulatory authority didn’t preclude finding a

First Amendment violation in those cases, then surely

the existence of such authority only makes it easier to

find one. But even without direct regulatory authority, courts need not ignore government officials’

“thinly-veiled threats” or “assertion[s] that … blacklists are in the nature of mere legal advice.” Bantam

Books, 372 U.S. at 68-69. As these cases show, federal

courts have largely adhered to this requirement, even

12

if there is some disagreement at the margins about

whether a government official’s statement and conduct constitutes an implied threat to use a state’s

coercive power to suppress protected private speech. 3

C. The Second and Tenth Circuits departed

from this consensus approach, opting for

a formalist focus on explicit threats.

Over the past two years, two federal circuits have

departed from the context-specific inquiry broadly employed by the lower federal courts.

1. In a split decision, the Tenth Circuit stepped out

of line first. See VDARE Found. v. City of Colo.

Springs, 11 F.4th 1151 (10th Cir. 2021). VDARE involved a political advocacy group that maintained

controversial views on U.S. immigration policy and reserved a resort in Colorado Springs for a future

conference. See id. at 1156. A few months after

VDARE reserved the resort, in August 2017, violence

erupted at a political rally in Charlottesville, Virginia.

Id. at 1157. Two days later, the Mayor of Colorado

Springs issued the following statement:

3 To be sure, these cases don’t stand for the proposition that gov-

ernment officials run afoul of the First Amendment simply

because they warn regulated parties that they will prosecute—

even vigorously so—conduct in violation of the laws they have

lawful authority to enforce. Instead, courts look “through forms

to the substance” to see if the official has used “threat[s],” “coercion, persuasion, and intimidation” to stifle protected expression

they couldn’t regulate directly. See Bantam Books, 372 U.S. at

66-67.

13

The City of Colorado Springs does not have the

authority to restrict freedom of speech, nor to

direct private businesses like the Cheyenne

Mountain Resort as to which events they may

host. That said, I would encourage local businesses to be attentive to the types of events they

accept and the groups that they invite to our

great city.

The City of Colorado Springs will not provide

any support or resources to this event, and does

not condone hate speech in any fashion. The

City remains steadfast in its commitment to the

enforcement of Colorado law, which protects all

individuals regardless of race, religion, color,

ancestry, national origin, physical or mental

disability, or sexual orientation to be secure and

protected from fear, intimidation, harassment

and physical harm.

Id. The next day, the resort announced that it would

not host the conference and it cancelled its contract

with VDARE. Id. VDARE sued, arguing that the

mayor’s statement, considered in context, constituted

a “‘threat’ or ‘warning’ to ‘local businesses’ not to contract with VDARE,” and thus violated its First

Amendment rights. See id. at 1057-60 (cleaned up). 4

4 VDARE relied on Blum v. Yaretsky, 457 U.S. 991 (1982), to find

that the mayor’s statement didn’t constitute state action, see

11 F.4th at 1160-61, 1164-68, but Blum doesn’t control when

courts evaluate informal government censorship claims. Blum

14

Instead of analyzing the mayor’s statement, as a

whole and in context, to determine if it constituted an

implicit threat, the VDARE majority painstakingly

analyzed each sentence of that statement in isolation.

See id. at 1164-68. But even to the extent the majority

ostensibly considered the surrounding context, it labored to construe VDARE’s allegations in the mayor’s

favor. See id. And the majority’s finding that the

statement was not a “thinly veiled threat” anchored its

conclusions that there was no state action and that

VDARE failed to allege a viable First Amendment

claim. See id. at 1164-68, 1170-75.

Relying on a strained reading of the mayor’s statement, the majority rejected VDARE’s claims because

it found the statement wasn’t “significantly encouraging or coercive.” Id. at 1167. To get there, the majority

played ostrich, reading each sentence in isolation and

ignoring the natural import of the mayor’s words. In

doing so, the majority found that mayor’s statement

considered whether a private party’s compliance with state regulations constituted state action, and it held that a state is

responsible for private conduct “only when it has exercised coercive power or has provided such significant encouragement,

either overt or covert, that the choice must in law be deemed that

of the state.” 457 U.S. at 1003-04. But it didn’t consider the relevant question here: whether government threats designed to

suppress private speech constitute state action. Bantam Books,

however, addressed that precise question, and it found that the

“acts and practices” of the state commission were conducted “under color of state law” and thus constituted state action. See

372 U.S. at 68.

15

included no plausible threats because he simply referenced the limits of his authority, never specifically

mentioned VDARE or any distaste for its speech, and

merely referenced Colorado law. See id. at 1164-66.

The third sentence, that the City “will not provide any

support or resources to this event and does not condone hate speech in any fashion,” was a closer call. See

id. at 1166. But the majority found that the natural

import of the resort’s cancellation—considering the

Charlottesville context—was that the resort could

have cancelled its contract with VDARE, not because

of the mayor’s statement, but “after observing news

coverage of th[e] Charlottesville event.” See id. (emphasis added). The majority, however, buried its head in

the sand regarding key aspects of the mayor’s statement: (i) he singled out the resort; (ii) in the next

sentence, he referred to withholding resources from

“this event” and referenced hate speech; and (iii) he invoked Colorado law protecting against “fear,

intimidation, harassment and physical harm.” See id.

at 1164-66. What other “event” at the resort involving

possible “hate speech” was the mayor’s statement referring to if not to VDARE’s event?

Judge Hartz dissented, arguing that the most (if

not the only) reasonable construction of the mayor’s

statement that the city “will not provide any resources

to this event” was that no police or fire resources

would be provided for VDARE’s event at the resort.

Id. at 1175-76 (Hartz, J., dissenting). He argued that

VDARE adequately alleged “[a] government effort to

punish or deter disfavored speech” because, in context,

the mayor’s announcement that he was withholding

16

police services from the event was “an open invitation

to those inclined to violence.” Id. at 1176-77 (citing

Bantam Books, 372 U.S. at 61-63); see also id. at 1177

(arguing that it was “more plausible that the Charlottesville violence enhanced the coercive force” of the

mayor’s statement “by highlighting the danger to the

Resort from the denial of police protection”).

VDARE dilutes the contextual inquiry largely followed by the lower courts and recasts Bantam Books

prohibition of “informal censorship regimes” as a formalistic inquiry into whether government officials

“formally” banned a speaker from expressing his or

her views. See id. at 1167, 1172. And in so doing, the

Tenth Circuit elevates form over function, precisely

the opposite of what Bantam Books instructed courts

to do. See 372 U.S. at 67.

2. In this case, the Second Circuit joined the Tenth

Circuit in departing from the consensus approach. See

Vullo, 49 F.4th 700. The NRA alleged, in part, that

the powerful head of New York’s DFS leveraged her

regulatory authority to pressure financial institutions

to cut ties with the NRA. Id. at 706-11.

Over several months, Vullo pledged to use her regulatory power to combat the availability of firearms,

and she investigated technical violations of insurance

firms providing services to the NRA, made back-alley

threats to financial institutions to cease providing services for NRA-endorsed affinity-insurance programs,

and issued formal guidance and a press release calling

on financial institutions to sever their ties with the

NRA. Id.; see also Pet.8-11. Feeling the heat, many of

17

these institutions complied and severed ties with the

NRA. Id. at 706; see also Pet.11-12.

The Second Circuit considered whether Vullo’s

statements in the private meetings, guidance letters,

press release, and consent decrees were “implied

threats to employ coercive state power to stifle protected speech.” Vullo, 49 F.4th at 714 (quoting

Hammerhead Enters., Inc. v. Brezenoff, 707 F.2d 33,

39 (2d Cir. 1983)). So far, so good. But when flagging

the factors courts consider in this inquiry—like word

choice and tone, regulatory authority, perception of a

threat—it characterized “whether the speech refers to

adverse consequences” as the most important factor,

effectively requiring the NRA to show an explicit

threat. See id. at 715.

Like VDARE, Vullo applied a diluted version of

Bantam Books’ informal censorship inquiry, separately evaluating Vullo’s statements in the press

release, formal guidance, Lloyd’s meeting, and consent

decrees. See id. at 716-19. First, looking at the press

release and guidance documents, it held that they

were not threatening—even though the court conceded they could be perceived as such—because they

didn’t “refer to any pending investigations or possible

regulatory action” (just the “reputational risks” of doing business with the NRA), and they “were written in

an evenhanded, nonthreatening tone and employed

words intended to persuade rather than intimidate.”

See id. at 717-18. But DFS, by phrasing its warning

as one of “reputational risk,” clearly communicated to

regulated institutions that business relationships

18

with the NRA were off limits. Pet.11; see also Gissel

Packing, 395 U.S. at 619 (regulated entities “pick up

intended implications … more readily dismissed by a

disinterested ear”). 5

Second, looking to the meetings and consent decrees, the court found that Vullo’s alleged statement

in the Lloyd’s meeting—that she was more interested

in Lloyd’s ending its business relationship with the

NRA than in pursuing its technical infractions—was

made more (not less) reasonable by the existence of the

investigation into affinity insurance violations. See

Vullo, 49 F.4th at 718-19; but see Pet.22 (arguing that

applying selective regulatory scrutiny to the NRA, a

political adversary, made Vullo’s speech more coercive).

Not only did the Second Circuit’s analysis of Vullo’s

statements misapply Bantam Books, but it entirely

disregarded the vast regulatory authority at her disposal. Unlike Bantam Books, Okwedy, Backpage.com,

R.C. Maxwell, American Family, and Penthouse, Vullo

possessed direct regulatory authority over the entities

she allegedly threatened with regulatory scrutiny. Indeed, in R.C. Maxwell, the Third Circuit found no First

Amendment violation, relying heavily on the city

council’s absence of direct regulatory authority. See

5 Vullo’s warning is reminiscent of “the classic threat of B-movie

mobsters: Nice business you got there, it’d be a shame if something

happened to it.” David B. Rivkin Jr. & Andrew M. Grossman, The

NRA vs. the Censorship ‘Mob’, THE WALL ST. J. (Dec. 27, 2022).

Government officials shouldn’t be able to evade First Amendment

scrutiny so easily.

19

735 F.2d at 88 (explaining that “[t]he quantum of governmental authority brought to bear against [the

target entity] was far less than that faced by Rhode

Island’s booksellers [in Bantam Books]”). The line between persuasion and coercion necessarily depends on

context, and one critical contextual cue is whether government officials have regulatory authority over the

entities or individuals they target. Turning a blind

eye to Vullo’s vast regulatory authority and formalistically relying on her “evenhanded” word choice and

tone, Vullo casts aside its obligation to look to the substance and blesses government officials’ talismanic

invocation of certain words and phrases that would be

perceived as threats by interested parties but “more

readily dismissed by a disinterested ear.” See Gissel

Packing, 395 U.S. at 619.

Both Vullo and VDARE departed from the consensus approach described above, placing the Second and

Tenth Circuits in a deep and irreconcilable conflict

with the approach used in the Third, Fourth, Seventh,

Eighth, Ninth, and D.C. Circuits. And in Vullo, the

Second Circuit departed from its own prior circuit

precedent. This split will not be resolved without this

Court’s review.

II. Vullo’s and VDARE’s expansion of the government speech doctrine risks eroding First

Amendment safeguards for political speech.

Both Vullo and VDARE endorse a subtle expansion

of the government speech doctrine that threatens to

erode vital First Amendment protections for private

20

political speech. See Matal, 137 S. Ct. at 1758 (explaining that the doctrine “is susceptible to dangerous

misuse” and calling for “great caution before extending [this Court’s] government-speech precedents”).

Shifting away from the standard inquiry for informal

censorship claims—which considers whether, in context, a government official is regulating private

expression, see Bantam Books, 372 U.S. at 66-67—

Vullo and VDARE conceive of the government speech

doctrine as a collision of “[t]wo sets of free speech

rights … : those of private individuals and entities and

those of government officials.” See Vullo, 49 F.4th at

714-15; VDARE, 11 F.4th at 1156, 1168.

Critically, the “government-speech doctrine is not

based on the view—which [this Court] ha[s] neither

accepted nor rejected—that governmental entities

have First Amendment rights.” Shurtleff, 142 S. Ct.

at 1599 (Alito, J., concurring in the judgment). Instead, it’s based on the commonsense notion that

government communications do not ordinarily “restrict the activities of … persons acting as private

individuals.” Id. (quoting Rust v. Sullivan, 500 U.S.

173, 198-99 (1991)). So, while it’s undoubtedly true

that the government is “exempt from First Amendment Scrutiny” when it “speak[s] for itself,” see

Pleasant Grove City v. Summum, 555 U.S. 460, 467

(2009), it isn’t “exempt from First Amendment attack

if it uses a means that restricts private expression,”

Shurtleff, 142 S. Ct. at 1599 (Alito, J., concurring in

the judgment).

21

Even if government entities have First Amendment rights, this Court’s government-speech cases

provide little cover here. To qualify as “government

speech,” the relevant act of communication must be official government action. See id. at 1598 (citing Clark

v. Cmty. for Creative Non-Violence, 468 U.S. 288, 294

(1984) and Garcetti v. Ceballos, 547 U.S. 410, 421

(2006)). And this Court’s government-speech cases focus on whether a relevant act of communication was a

government message or a private message. See, e.g.,

Walker v. Texas Div., Sons of Confederate Veterans,

Inc., 576 U.S. 200, 208 (2015) (specialty license plates

are government speech); Johanns v. Livestock Mktg.

Ass’n, 544 U.S. 550, 562 (2005) (beef marketing is government speech); Shurtleff, 142 S. Ct. at 1593

(temporary flagpole use is private speech). Each case

involved a single expressive conduit and concerned the

speaker’s identity (i.e., government or private party).

But those cases are a poor fit for determining

whether a government entity has regulated private

expression through its own speech. See VDARE,

11 F.4th at 1176 (Hartz, J., dissenting) (explaining

that government-speech doctrine is invoked to determine if government control over a forum regulates

private speech or simply involves the government determining its own message). The “real question in

government-speech cases,” then, is “whether the government is speaking instead of regulating private

expression.” Shurtleff, 142 S. Ct. at 1595 (Alito, J.,

concurring in the judgment).

22

That’s where Vullo and VDARE get off track. In

Vullo, the court observed that “[t]wo sets of free speech

rights are implicated,” and when drawing the line between permissible government persuasion and

impermissible coercion, it suggested that the most important factor for determining whether the

government lost its free speech rights is whether it employed explicit threats in carrying out its duties. Id.

at 714-15. Likewise, in VDARE, the court explained

that “permissible government speech” means that officials are “entitled to speak for themselves [and]

express their own views, including disfavoring certain

points of view.” 11 F.4th at 1168; see also id. (arguing

that the mayor’s speech was “itself protected” and had

to “be egregious to be plausibly retaliatory”). So, rather than safeguarding private expression, both Vullo

and VDARE subtly shift the emphasis to safeguarding

government expression—leaving the door open for

governments to use the “government-speech doctrine … as a cover for censorship.” Shurtleff, 142 S.

Ct. at 1595 (Alito, J., concurring in the judgment). But

given the shaky foundation of a government’s free

speech rights, see id. at 1599, especially in light of established First Amendment protections for private

speech, this Court should step in to shut that door and

clarify the scope of the government-speech doctrine.

III. Vullo and VDARE pave the way for government suppression of disfavored speech.

Freedom of speech “is essential to free government,” as our founding generation believed that “free

and fearless reasoning and communication of ideas”

23

enables the “discover[y] and spread [of] political and

economic truth.” Thornhill v. Alabama, 310 U.S. 88,

95 (1940). While the government may advocate for its

preferred policy positions and criticize contrary positions, it may not use “the government-speech doctrine”

to “surreptitiously engage[] in the ‘regulation of private speech.’” Shurtleff, 142 S. Ct. at 1595-96 (Alito,

J., concurring in the judgment) (quoting Summum,

555 U.S. at 467). But, in Vullo and VDARE, “[p]ublic

officials have a readymade playbook for abusing their

regulatory power to harm disfavored advocacy groups

without triggering judicial scrutiny.” ACLU Br. at 4.

In Vullo, that meant giving “government regulators free rein to selectively target unpopular speakers

in the name of ‘tak[ing] action to address key social

and environmental issues.’” Pet.29 (citation omitted).

In VDARE, like in Backpage.com, it meant pairing

subtle threats with formal criticism of disfavored

speech or conduct the official wants to eradicate. See

VDARE, 11 F.4th at 1157, 1164-68; see also Backpage.com, 807 F.3d at 237-38 (“The judge was giving

official coercion a free pass because it came clothed in

what in the absence of any threatening language

would have been a permissible attempt at mere persuasion.”).

If the Second Circuit’s decision is left standing, it’s

not difficult to imagine government officials employing similar tactics to stifle disfavored speakers. 6

6 Indeed, in recent years, government officials have increasing

resorted to “jawboning”—which occurs when the “official threatens to use his or her power … to compel someone to take actions

24

Whether the method of choice is to target financial institutions that advocacy groups depend on to engage

in fulsome political advocacy—whether related to

school choice, abortion, religious liberty, or environmental issues—or simply to target private

organizations that host events for such groups, the

path forward is clearly marked. Bantam Books, Backpage.com, Okwedy, and Blankenship all recognized

that government officials’ reliance on subtle threats of

coercive government action can stifle disfavored

speakers. And if this Court doesn’t intervene to shut

down that path, “where would such official bullying

end … ?” Backpage.com, 807 F.3d at 235.

CONCLUSION

The Court should grant the petition for a writ of

certiorari.

Respectfully submitted.

that the state official cannot”—in the social media sphere to

“sway the decisions of private platforms and limit the publication

of disfavored speech.” See Will Duffield, Jawboning Against

Speech, CATO POL’Y ANALYSIS, no. 934, Sept. 12, 2022, at 1-2.

Jawboning speech intermediaries, like the financial institutions

here, enables government officials to evade “the First Amendment’s restrictions on government censorship.” Id at 5-6 (“Using

threats of prosecution or regulation to compel private speech suppression simply launders state censorship through private

intermediaries.”).

25

April 5, 2023

AUSTIN KNUDSEN

Attorney General

CHRISTIAN B. CORRIGAN

Solicitor General

PETER M. TORSTENSEN, JR.

Assistant Solicitor General

Counsel of Record

MONTANA DEPARTMENT

OF JUSTICE

215 N. Sanders Street

Helena, MT 59601

(406) 444-2026

peter.torstensen@mt.gov

Counsel for Amicus Curiae

State of Montana

26

ADDITIONAL COUNSEL

STEVE MARSHALL

Attorney General of

Alabama

TIM GRIFFIN

Attorney General of

Arkansas

CHRISTOPHER M. CARR

Attorney General of

Georgia

BRENNA BIRD

Attorney General of

Iowa

KRIS KOBACH

Attorney General of

Kansas

DANIEL CAMERON

Attorney General of

Kentucky

JEFF LANDRY

Attorney General of

Louisiana

ANDREW BAILEY

Attorney General of

Missouri

JOHN M. FORMELLA

Attorney General of

New Hampshire

DREW H. WRIGLEY

Attorney General of

North Dakota

DAVE YOST

Attorney General of

Ohio

GENTNER F. DRUMMOND

Attorney General of

Oklahoma

ALAN WILSON

Attorney General of

South Carolina

MARTY J. JACKLEY

Attorney General of

South Dakota

27

SEAN D. REYES

Attorney General of

Utah

BRIDGET HILL

Attorney General of

Wyoming

PATRICK MORRISEY

Attorney General of

West Virginia